Nahmod Law

Section 803 of the Prison Litigation Reform Act, 42 U.S.C.A. § 1997e, imposes an exhaustion of prison administrative remedies requirement on prisoners who wish to sue under § 1983. (See § 9:65 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2024-25 ed.)(West/Westlaw)). At the same time, there is a Seventh Amendment right to a jury trial in certain § 1983 cases. (See §§ 1:52-1:55 of my Treatise on the right to a jury trial).

What is the interplay, if any, between the PLRA’s exhaustion requirement and the Seventh Amendment right to a jury trial? In some situations, the exhaustion issue is “intertwined” with the merits of the prisoner’s lawsuit because both depend on whether the plaintiff’s allegations are in fact true.

In Perttu v. Richards, 146 S. Ct. – (2025), aff’g, Richards v. Perttu, 96 F.4^th 911, 921 (6^th Cir. 2024), the Supreme Court resolved a split in the circuits on this question by holding that in such cases there is a right under the PLRA to a jury trial.

In Perttu, the plaintiff inmate challenged the district court’s decision, after an evidentiary hearing, that found he had failed to exhaust administrative remedies under the PLRA in connection with his First Amendment retaliation claim. He maintained that the defendant prison official had affirmatively prevented him from filing grievances alleging the defendant’s sexual abuse by ripping them up or otherwise destroying them.

In this case of first impression in its circuit, the Sixth Circuit reversed and held that the Seventh Amendment required that a jury decide disputed questions of fact relating to PLRA exhaustion “when the exhaustion issue is intertwined with the merits of the underlying dispute.” In this regard, the Sixth Circuit observed that it disagreed with the Seventh Circuit’s contrary decision as set out in Pavey v. Conley, 544 F.3d 739 (7^th Cir. 2008): “[T]he rationale [of Pavey] that a jury may reexamine the judge’s factual findings [relating to the merits] rings hollow if the prisoner’s case is dismissed for failure to exhaust his or her administrative remedies. In such an instance, a jury would never be assembled to resolve the factual disputes. That is Pavey’s fatal flaw.”

Agreeing with the Sixth Circuit as to the result but not reaching the constitutional issue on the merits, the Supreme Court affirmed in an opinion by Chief Justice Roberts. It held “as a matter of statutory interpretation that parties have a right to a jury trial on PLRA exhaustion when that issue is intertwined with the merits of a claim that falls under the Seventh Amendment.” (emphasis added). Here, the factual disputes over exhaustion overlapped with the plaintiff’s First Amendment retaliation claim.

Justice Barrett dissented, joined by Justices Thomas, Alito and Kavanaugh. Adopting an historical approach and indicating that the Seventh Amendment would not be violated if district courts decided disputed questions of fact implicating exhaustion even when intertwined with the merits, Justice Barrett asserted: “The Court reads the PLRA to say what it does not. It does so for reasons that the parties did not brief; that have no basis in our doctrine; and that are contrary to well-established principles of statutory interpretation. In so doing … the Court creates a regime … [that] generates more litigation of its own.” 146 S. Ct. at –.

The Court in Perttu avoided what many of the the Justices considered to be a difficult Seventh Amendment issue by deciding the case on PLRA statutory interpretation grounds. In so doing, it suggested that if Congress was not happy with the possible adverse effects of its decision on the implementation of the PLRA’s exhaustion requirement, Congress could amend the PLRA.